Roberts v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES T. ROBERTS,

Petitioner,

v. Case No. 8:21-cv-2068-TPB-NHA

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

James T. Roberts, a Florida prisoner, timely filed a second amended

petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 9). Having

considered the petition, Respondent’s response in opposition (Doc. 12), and

Roberts’s reply (Doc. 19), the Court DENIES the petition.

Background

This case arises from traumatic brain injuries suffered by J.R.,

Roberts’s biological child, when J.R. was three months old. In June 2013,

Roberts lived in Winter Haven, Florida, with J.R. and Stephanie

Cunningham, J.R.’s biological mother. (Doc. 13-2, Ex. 3, at 193). Around 1:00

p.m. on June 14, Cunningham left for work, leaving J.R. alone with Roberts.

(Id. at 194). At the time, J.R. was “normal” and “happy.” (Id.)

Around 3:00 p.m., Cunningham returned a missed call from Roberts.

(Id. at 195). Roberts said that J.R. had “rolled off the couch” onto the tile

floor. (Id.) The seat of the couch was seventeen inches off the ground. (Id. at

250). Cunningham asked whether J.R. needed to go to the hospital. (Id. at

195-96). Roberts said “no” and claimed that J.R. “was no longer crying.” (Id.

at 196). Cunningham got home from work around 1:00 a.m. and played with

J.R. for approximately thirty minutes. (Id.) According to Cunningham, J.R.

seemed “normal” at the time. (Id.)

Cunningham went to sleep and awoke at around 5:00 a.m. to get ready

for work. (Id. at 197). She noticed that J.R. “didn’t cry when he woke up[;] he

just stayed there in his bed.” (Id.) This was “abnormal” for J.R. (Id. at 198).

Later that morning, Roberts drove Cunningham to work. (Id.) J.R. sat in the

back seat with Cunningham as she fed him his bottle. (Id.) J.R. “threw up

more than half of his bottle” during the car ride. (Id.) Again, this behavior

was “abnormal.” (Id.)

Shortly after Roberts dropped Cunningham off, the car broke down.

(Id.) Sarah Siaca, Cunningham’s aunt, retrieved Roberts and J.R. from “the

side of the road.” (Id. at 266). Siaca drove them to a house she shared with

her husband, her son, Cunningham’s grandfather, and Cunningham’s other

aunt. (Id. at 266, 272).

Cunningham’s aunts quickly noticed that J.R. was “not himself.” (Id. at

278). He was “lethargic” and did not “acknowledge anything around him”—

“the cats, people, anything of that nature.” (Id.) As the day went on, J.R.’s

condition worsened. (Id. at 267). He began to “drool[] a lot more,” and he

“projectile vomited” while lying on the couch. (Id. at 267-68). One of the aunts

asked Roberts about J.R.’s drooling. (Id. at 268). He said that J.R. was

“teething.” (Id.) Throughout the day, neither of Cunningham’s aunts observed

anyone shake, hit, drop, or roughly handle J.R. (Id. at 271, 273-74, 280-81).

Around 1:00 a.m., Cunningham arrived at her relatives’ house. (Id. at

201). She picked up J.R. and noticed that “his eyes weren’t focusing on [her].”

(Id.) Indeed, he appeared to have “no control over his eyes.” (Id.) Soon after,

J.R.’s “whole right side” began “shaking.” (Id. at 202). At this point,

Cunningham and Roberts took J.R. to the hospital. (Id.)

Tests revealed that J.R. had (1) a depressed parietal skull fracture, (2)

“multiple areas” of acute subdural hematomas (i.e., bleeding in the brain), (3)

retinal bleeding in both eyes, and (4) swelling of the brain. (Id. at 288, 302,

304-05, 357). J.R. was also suffering from seizures, which were caused by a

blockage in “the middle cerebral artery.” (Id. at 373-74). An infant with these

injuries would typically show, within twenty-four hours, a “decreased level of

alertness,” drowsiness, vomiting, and “issues with coordination.” (Id. at 305).

Three medical professionals evaluated J.R. at the hospital—a second-

year medical resident, a pediatric nurse practitioner, and a pediatric

neurologist. (Id. at 285, 287, 325, 329-30, 368-70). All three testified at trial

that J.R.’s injuries were not consistent with rolling off a couch and falling

one-and-a-half feet onto tile floor. (Id. at 307, 356, 383-84). The neurologist

opined that the “combination” of J.R.’s injuries—“skull fracture, subdural

hemorrhages, retinal hemorrhages[,] and stroke”—“strongly suggest[ed]

repeated blows of the head into a soft pillow or a soft bed.” (Id. at 374-75).

Likewise, the nurse practitioner testified that J.R.’s injuries resulted from

“[n]on-accidental trauma” to the head. (Id. at 356).

Shortly after J.R. arrived at the hospital, law enforcement interviewed

Roberts. He claimed that on June 14, he was home alone with J.R. (Id. at

214). According to Roberts, he left the baby on the couch while he used the

bathroom. (Id.) Several minutes later, Roberts allegedly heard J.R. crying,

returned to the living room, and picked the baby up from the tile floor. (Id. at

214-15). Roberts told the police that J.R. seemed “normal” until the next

morning, when Cunningham’s aunt “noticed the child was acting lethargic.”

(Id. at 216, 218). Roberts denied hitting, dropping, or shaking J.R. (Id. at 221-

22).

Roberts was ultimately charged with neglect of a child causing great

bodily harm and aggravated child abuse causing great bodily harm. (Id., Ex.

2). The case went to a jury trial. At the time of trial, J.R. was four years old.

He “still suffer[ed] from seizures,” had “a lazy eye caused [by] hemorrhages

from behind his eyes,” and was on medication for “seizures” and “ADHD.”

(Id., Ex. 3, at 203-04). Roberts’s primary defense was that J.R.’s injuries

resulted from an “accident,” and that there was “absolutely no evidence that

[he] did something willfully, intentionally to cause great bodily harm to” J.R.

(Id. at 442-43). Roberts also argued that there was no evidence that “taking

[J.R.] to the hospital sooner rather than later would have done anything.” (Id.

at 441).

The jury convicted Roberts of (1) the lesser included offense of child

neglect and (2) aggravated child abuse causing great bodily harm. (Id., Ex. 4).

Because he committed these offenses within three years of his release from

prison on prior child-abuse charges, Roberts qualified as a prison releasee

reoffender. (Id., Ex. 5, at 7; see also State v. Roberts, No. 2010-CF-1722 (Fla.

10th Jud. Cir. Ct.)). In accordance with that designation, he received a

mandatory thirty-year sentence on the aggravated-child-abuse count, to run

concurrently with a five-year sentence on the child-neglect count. (Doc. 13-2,

Ex. 5).

Roberts appealed his convictions, and the state appellate court affirmed

without an opinion. (Id., Exs. 6, 11). He then moved for postconviction relief

under Florida Rule of Criminal Procedure 3.850. (Id., Ex. 13). The state

postconviction court denied relief without holding an evidentiary hearing,

and the state appellate court affirmed without an opinion. (Id., Exs. 15, 19).

This federal habeas petition followed. (Docs. 1, 4, 9).

Standards of Review

AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs

this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).

Habeas relief can be granted only if a petitioner is in custody “in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

Section 2254(d) provides that federal habeas relief cannot be granted on a

claim adjudicated on the merits in state court unless the state court’s

adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

A decision is “contrary to” clearly established federal law “if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court

on a question of law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts.” Williams

v. Taylor, 529 U.S. 362, 412-13 (2000). A decision involves an “unreasonable

application” of clearly established federal law “if the state court identifies the

correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

413.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure

that state-court convictions are given effect to the extent possible under law.”

Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on

whether the state court’s application of clearly established federal law is

objectively unreasonable, and . . . an unreasonable application is different

from an incorrect one.” Id. at 694; see also Harrington v. Richter, 562 U.S. 86,

103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fair minded disagreement.”).

The state appellate court affirmed Roberts’s convictions, as well as the

denial of postconviction relief, without discussion. These decisions warrant

deference under § 2254(d)(1) because “the summary nature of a state court’s

decision does not lessen the deference that it is due.” Wright v. Moore, 278

F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent

affirmance, “the federal court should ‘look through’ the unexplained decision

to the last related state-court decision that does provide a relevant rationale”

and “presume that the unexplained decision adopted the same reasoning.”

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Ineffective Assistance of Counsel

Roberts alleges ineffective assistance of trial counsel. Ineffective-

assistance-of-counsel claims are analyzed under the test established in

Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing

of deficient performance by counsel and resulting prejudice. Id. at 687.

Deficient performance is established if, “in light of all the circumstances, the

identified acts or omissions [of counsel] were outside the wide range of

professionally competent assistance.” Id. at 690. However, “counsel is

strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id.

Roberts must show that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Id. at 691. To demonstrate prejudice, Roberts

must show “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is

difficult on federal habeas review because “[t]he standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply

in tandem, review is doubly so.” Richter, 562 U.S. at 105 (internal quotation

marks and citations omitted). “The question [on federal habeas review of an

ineffective assistance claim] ‘is not whether a federal court believes the state

court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable—a substantially higher

threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro

v. Landrigan, 550 U.S. 465, 473 (2007)).

Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims by raising them in

state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must

give the state courts an opportunity to act on his claims before he presents

those claims to a federal court in a habeas petition.”). The exhaustion

requirement is satisfied if the petitioner fairly presents his claim in each

appropriate state court and alerts that court to the federal nature of the

claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has

failed to exhaust state remedies that are no longer available, that failure is a

procedural default which will bar federal habeas relief, unless either the

cause and prejudice or the fundamental miscarriage of justice exception is

established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001); see also

Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (stating that

unexhausted claims that “would be procedurally barred in state court due to

a state-law procedural default” provide no basis for federal habeas relief).

A petitioner shows cause for a procedural default when he

demonstrates “that some objective factor external to the defense impeded the

effort to raise the claim properly in the state court.” Wright v. Hopper, 169

F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates prejudice by

showing that “there is at least a reasonable probability that the result of the

proceeding would have been different” absent the constitutional violation.

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental

miscarriage of justice’ occurs in an extraordinary case, where a constitutional

violation has resulted in the conviction of someone who is actually innocent.”

Id.

Discussion

Ground One

Roberts contends that trial counsel was ineffective for failing to retain

an expert witness to “support [his] defense.” (Doc. 9 at 9). According to

Roberts, an expert could have testified that (1) “the shaking of the minor

child or hitting the child against a soft surface would not have caused the

injuries that [J.R.] suffered,” and (2) “a short fall to a hard surface, like the

fall to the tile[] floor in this case, commonly causes skull fractures resulting

in the type of severe subdural hematomas and bilateral retinal hemorrhages

that [J.R.] suffered here.” (Id. at 17-18). Roberts argues that retaining such

an expert would have allowed counsel to “effectively” cross-examine the

State’s expert witnesses. (Id. at 14-15). He also maintains that the proposed

expert testimony would have “given the jury a competent evidentiary basis to

find reasonable doubt on the aggravated child abuse charge.” (Id. at 21-22).

The state postconviction court rejected this claim for the reasons stated

in the State’s “response,” which was “incorporated herein” by reference. (Doc.

13-2, Ex. 15, at 73). The response noted that Roberts failed to establish either

deficient performance or prejudice. (Id., Ex. 14, at 47-49). As to prejudice, the

response explained that Roberts offered nothing beyond “speculation” to show

that “the jury would have reached a different result” had counsel “call[ed]

alternative experts for the defense.” (Id. at 50). Accordingly, Roberts failed to

show that retaining an expert witness would have led to “a reasonable

probability of a different result” at trial. (Id. at 50-51).

The state postconviction court reasonably rejected this claim for lack of

prejudice. “The prejudice prong requires the petitioner to establish a

reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.” Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252,

1261 (11th Cir. 2014) (internal quotation marks omitted). “It is not enough

for the [petitioner] to show that the errors had some conceivable effect on the

outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead, “counsel’s

errors [must be] so serious as to deprive the [petitioner] of a fair trial, a trial

whose result is reliable.” Id. at 687. “This prejudice burden is heavy where

the petitioner alleges ineffective assistance in failing to call a witness because

often allegations of what a witness would have testified to are largely

speculative.” Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006)

(internal quotation marks omitted).

Roberts failed to meet his burden when he presented Ground One to

the state postconviction court. In his Rule 3.850 motion, he asserted that

counsel “could have easily retained a medical expert to provide testimony

that, to a reasonable degree of medical certainty, the injuries that J.R.

suffered were caused by or consistent with a fall from the couch to a hard

surface.” (Doc. 13-2, Ex. 13, at 18). But Roberts did not identify any expert

who could have provided such testimony. Nor did he allege that “any [] expert

had actually reviewed the evidence in his case.” Finch v. Sec’y, Dep’t of Corr.,

643 F. App’x 848, 852 (11th Cir. 2016). “Without some specificity as to the

proposed expert’s testimony, any assertion that an expert would testify

consistently with [Roberts’s] claims [was] mere speculation and [did] not

entitle him to [] relief.” Id. Thus, the state postconviction court reasonably

concluded that Roberts’s allegations were too speculative to establish

prejudice under Strickland. See, e.g., Jimenez v. Sec’y, Dep’t of Corr., No.

8:19-cv-684-MSS-AEP, 2021 WL 5416150, at *9 (M.D. Fla. Nov. 19, 2021)

(“[I]n his post-conviction motion, [petitioner] neither identified an expert who

could have testified [favorably to the defense] nor presented an affidavit or

testimony to substantiate that testimony. Because [petitioner’s] ineffective

assistance of counsel claim was speculative, the state court did not

unreasonably deny the claim.” (citation omitted)).

Roberts attempts to remedy this evidentiary gap by submitting an

affidavit from Dr. Edward Willey, who opines that “[s]hort falls to a hard

surface” “commonly cause skull fracture” and “may be very damaging.” (Doc.

5-1 at 7). But AEDPA limits this Court’s review of state-court adjudications

“to the record that was before the state court.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011). Dr. Willey’s affidavit was never presented to the state court.

As a result, this Court cannot consider the affidavit in deciding whether the

state postconviction court reasonably rejected Roberts’s claim. See French v.

Warden, Wilcox State Prison, 790 F.3d 1259, 1266 (11th Cir. 2015) (“Under

Pinholster, our [] review must be conducted on the basis of the record that

was before the state habeas court when it adjudicated the merits of [the]

ineffective assistance of counsel claims.”).

In short, Roberts fails to show, “based solely on the state court record,”

that the state postconviction court acted unreasonably in denying relief.

Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015).

Accordingly, Ground One is denied.1

Ground Two, Sub-Claim A

Roberts contends that trial counsel was ineffective for failing to “depose

two of the experts that the State called to testify at trial”—specifically, the

nurse practitioner and the medical resident, both of whom had evaluated J.R.

at the hospital. (Doc. 9 at 23-24). According to Roberts, the failure to depose

these witnesses—and to “thoroughly consult[] with an expert prior to trial”—

meant that counsel was “unprepared” for their trial testimony and unable to

“point out deficiencies in the . . . testimony on cross-examination.” (Id. at 24).

The state postconviction court rejected this claim for the reasons stated

in “the State’s response.” (Doc. 13-2, Ex. 15, at 73). The response explained

that Roberts offered “nothing to support any claim of deficiency or prejudice”

because he “provide[d] not even a scintilla of support for his claim that

1 Roberts argues that AEDPA deference does not apply to Ground One because the state

postconviction court failed “to conduct an evidentiary hearing on the matter.” (Doc. 9 at 21).

But there is no “per se rule that a state court must conduct an evidentiary hearing to

resolve every disputed factual question.” Landers, 776 F.3d at 1297. No evidentiary hearing

was necessary in this case because Roberts’s unsupported speculation about the utility of

hiring an expert was insufficient to meet his burden under Strickland.

[c]ounsel was unprepared for certain witnesses’ testimony.” (Id., Ex. 14, at

52).

The rejection of this claim was reasonable. A petitioner cannot

establish ineffective assistance by making “conclusory allegations

unsupported by specifics.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.

1991) (internal quotation marks omitted); see also Wilson v. United States,

962 F.2d 996, 998 (11th Cir. 1992) (same). In his Rule 3.850 motion, Roberts

alleged that because counsel failed to depose two of the State’s experts, he

“was unprepared for their testimony” at trial. (Doc. 13-2, Ex. 13, at 20). But

Roberts “point[ed] to no specific instance in which counsel was surprised by a

witness’s testimony or failed to perform an effective cross-examination.”

Bogan v. Thompson, 365 F. App’x 155, 157 (11th Cir. 2010). Nor did he

identify any questions that counsel should have asked of the State’s experts.

Thus, “the claim as presented in state court was conclusory, and insufficient

to state a Sixth Amendment ineffective-assistance-of-counsel claim.” Moore v.

Crews, No. 16-11675-H, 2017 WL 7085622, at *4 (11th Cir. Oct. 24, 2017); see

also United States v. Castleman, No. 3:08-cr-22-LAC-CJK, 2017 WL 1234145,

at *10 (N.D. Fla. Feb. 10, 2017) (“Defendant’s related assertion [that] counsel

generally failed to make a ‘whole host of objections’ or take advantage of

‘impeachment opportunities’ is too vague to satisfy Strickland.”), adopted by

2017 WL 1234141 (N.D. Fla. Apr. 3, 2017).

In his federal habeas petition, Roberts attempts to supplement the

claim he presented to the state court. For the first time, he alleges (among

other things) that counsel could have brought out on cross-examination “that

short falls to hard surfaces, such as the tile[] floor here, can be very damaging

and even fatal.” (Doc. 9 at 24). These new allegations cannot be considered on

federal habeas review. “[A] review of a state court adjudication on the merits

in light of allegations not presented to the state court—for example, by

examining additional facts or claims presented for the first time in a

petitioner’s federal habeas petition—would insufficiently respect the historic

and still vital relation of mutual respect and common purpose existing

between the States and the federal courts.” Borden v. Allen, 646 F.3d 785,

816 (11th Cir. 2011) (internal quotation marks omitted). Accordingly, this

Court “do[es] not consider [Roberts’s] supplemental allegations . . . when

reviewing the reasonableness of the state court’s resolution of this claim,

which was based on the allegations before it.” Powell v. Allen, 602 F.3d 1263,

1273 n.8 (11th Cir. 2010).

Because the state postconviction court reasonably rejected Roberts’s

ineffective-assistance claim based on the allegations before it, Ground Two,

Sub-Claim A is denied.2

2 Roberts contends that counsel’s “lack of preparedness contributed to [] counsel’s failure to

understand the critical need to retain an expert witness for the defense.” (Doc. 9 at 24).

Ground Two, Sub-Claim B

Roberts argues that trial counsel was ineffective for failing to depose

unidentified “fact witnesses,” who allegedly “would have informed [counsel] of

possible alternative defenses.” (Doc. 9 at 23). This claim is unexhausted

because Roberts never raised it in state court. “[T]he prohibition against

raising nonexhausted claims in federal court extends not only to broad legal

theories of relief, but also to the specific assertions of fact that might support

relief.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

This means that “habeas petitioners may not present particular factual

instances of ineffective assistance of counsel in their federal petitions that

were not first presented to the state courts.” Id.

In his Rule 3.850 motion, Roberts broadly asserted that “trial counsel

was ineffective for failing to investigate and properly prepare for trial.” (Doc.

13-2, Ex. 13, at 19). But he did not raise the “particular factual instance[] of

ineffective assistance” underlying this claim—namely, that counsel was

deficient for failing to depose certain fact witnesses. Kelley, 377 F.3d at 1344.

The state postconviction court “never had the opportunity to decide” that

That claim fails for the same reasons as Ground One—namely, that Roberts failed to

present the state court with sufficient evidence that an expert would have been helpful to

the defense. Roberts separately argues that AEDPA deference does not apply to Ground

Two, Sub-Claim A because the state postconviction court declined to hold an evidentiary

hearing. (Id. at 26). But no hearing was necessary in this case because Roberts’s Rule 3.850

motion offered nothing more than “conclusory allegations unsupported by specifics.” Tejada,

941 F.2d at 1559.

claim because Roberts “raised [it] for the first time in federal court.”

Greenwood v. Sec’y, Dep’t of Corr., 794 F. App’x 831, 834 (11th Cir. 2019).

Roberts cannot return to state court to present his unexhausted claim

in a second, untimely postconviction motion. See Fla. R. Crim. P. 3.850(b)

(imposing two-year window of time to file motion for postconviction relief). As

a result, this claim is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If

the petitioner has failed to exhaust state remedies that are no longer

available, that failure is a procedural default which will bar federal habeas

relief, unless either the cause and prejudice or the fundamental miscarriage

of justice exception is established.”). And because Roberts has not shown that

an exception applies to overcome the default, the claim is barred from federal

habeas review. Accordingly, Ground Two, Sub-Claim B is denied.

Ground Three

Finally, Roberts argues that trial counsel was ineffective for failing to

argue to the jury that “other persons were in the presence of the minor child,

J.R., who could have caused the minor child’s injury or who could have

exacerbated any injury the minor child might have suffered from falling off

the couch to the tile[] floor.” (Doc. 9 at 29). According to Roberts, this “viable

defense” “would have created reasonable doubt in the minds of the jurors as

to the State’s theory.” (Id. at 29, 31).

The state postconviction court rejected this claim for the reasons stated

in “the State’s response.” (Doc. 13-2, Ex. 15, at 73). In its response, the State

noted that “[t]here was no testimony from any witness that anyone [other

than Roberts] did anything to [J.R.] that could have injured him or

exacerbated his injuries.” (Id., Ex. 14, at 54). Thus, Roberts’s “theory did not

present a viable strategy because it was based entirely on speculation and

conjecture.” (Id. at 55). For the same reason, “[t]here [was] no reasonable

basis to expect that this strategy would have led to a different result.” (Id.) As

a result, “nothing . . . show[ed] counsel [was] deficient or that [Roberts] was

prejudiced by his representation.” (Id.)

That conclusion was reasonable. A strategic decision by counsel “will be

held to have been ineffective assistance only if it was so patently

unreasonable that no competent attorney would have chosen it.” Dingle v.

Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). “Because

Strickland allows for a range of strategic choices by trial counsel, so too is

there considerable leeway for state courts to determine the reasonableness of

those choices.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.

2020). Accordingly, to prevail on his ineffective-assistance claim, Roberts

“would have to show that no reasonable jurist could find that his counsel’s

performance fell within the wide range of reasonable professional conduct.”

Id.

Roberts fails to overcome the “doubly deferential” standard of review

required by Strickland and AEDPA. Pinholster, 563 U.S. at 190. A reasonable

jurist could conclude that counsel was not deficient for failing to argue that

“other persons [who] were in the presence of” J.R. could have caused or

exacerbated his injuries. (Doc. 9 at 29). As an initial matter, the proposed

defense was weak. J.R. spent time with his relatives on June 15, the day

after he allegedly fell off the couch. But Cunningham’s aunts testified that

they did not observe anyone shake, hit, drop, or roughly handle J.R. on June

15. (Doc. 13-2, Ex. 3, at 271, 273-74, 280-81). Nothing in the record

contradicts that testimony. Moreover, J.R. began displaying symptoms

associated with his injuries—specifically, vomiting and decreased alertness—

before he arrived at his relatives’ house. (Id. at 198). Roberts speculates that

those symptoms could have been caused by “rolling from the couch,” but he

cites no evidence from the trial record to support that assertion. (Doc. 9 at

30). A competent attorney could have chosen to forgo such a weak defense.

See Knowles, 556 U.S. at 123 (“[The Supreme] Court has never required

defense counsel to pursue every claim or defense, regardless of its merit,

viability, or realistic chance for success.”).

And even if the defense were viable, “Strickland permits attorneys to

choose between viable avenues of defense.” LeCroy v. United States, 739 F.3d

1297, 1313 (11th Cir. 2014). Thus, “attorneys are not ineffective for making a

reasonable choice to take one avenue to the exclusion of another, or for

selecting a reasonable course without considering some other, equally

reasonable course.” Id. Here, counsel argued that J.R.’s injuries resulted from

an “accident,” and that there was “absolutely no evidence that [Roberts] did

something willfully, intentionally to cause great bodily harm to” J.R. (Doc.

13-2, Ex. 3, at 442-43). A reasonable jurist could conclude that this defense

strategy “fell within the wide range of reasonable professional conduct.”

Franks, 975 F.3d at 1176. There was no direct evidence that Roberts had

intentionally struck or shaken J.R. And while the circumstantial evidence

against Roberts was strong, counsel “had a basis to argue that a sufficient

link could not be forged between [him] and the crime.” Johnson v. Alabama,

256 F.3d 1156, 1180 (11th Cir. 2001).

Lastly, given the weakness of Roberts’s proposed defense, a reasonable

jurist could conclude that he was not prejudiced by counsel’s failure to pursue

it at trial. See Reed, 767 F.3d at 1261 (“The prejudice prong requires the

petitioner to establish a reasonable probability that, but for counsel’s errors,

the outcome at trial would have been different.” (internal quotation marks

omitted)).

For all of these reasons, the state postconviction court reasonably

rejected Roberts’s ineffective-assistance claim. Accordingly, Ground Three is

denied.3

Conclusion

Accordingly, it is ORDERED that Roberts’s second amended petition

(Doc. 9) is DENIED. The CLERK is directed to enter judgment against

Roberts and to CLOSE this case.

It is further ORDERED that Roberts is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. 28 U.S.C.

§ 2253(c)(1). Rather, a court must first issue a certificate of appealability. To

obtain a certificate of appealability, Roberts must show that reasonable

jurists would find debatable both (1) the merits of the underlying claims and

(2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Roberts has not made the requisite

showing. Accordingly, a certificate of appealability is DENIED. Leave to

3 Roberts seeks an evidentiary hearing on his claims. The Court concludes that an

evidentiary hearing is not warranted. See Schriro, 550 U.S. at 474 (stating that “if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a

district court is not required to hold an evidentiary hearing”); Landers, 776 F.3d at 1295

(“[B]efore a habeas petitioner may be entitled to a federal evidentiary hearing on a claim

that has been adjudicated by the state court, he must demonstrate a clearly established

federal-law error or an unreasonable determination of fact on the part of the state court,

based solely on the state court record.”).

appeal in forma pauperis is DENIED. Roberts must obtain permission from

the circuit court to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida, this 23rd day of April, 2024.

TOM BARBER

UNITED STATES DISTRICT JUDGE

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